Media Week (V5, N20) Georgia State Opinion Round-Up

Overall there is good news for libraries in the decision issued late
yesterday in the Georgia State University e-reserves copyright case.
Most of the extreme positions advocated by the plaintiff publishers were
rejected, and Judge Evans found copyright infringement in only five
excerpts from among the 99 specific reading that had been challenged in
the case.
That means she found fair use, or, occasionally, some other justification, in 94 instances, or 95% of the time.
But that does not make this an easy decision for libraries to deal
with. Indeed, it poses a difficult challenge for everyone involved, it
seems. For the Judge, it was a monumental labor that took almost a year
to complete. She wrote 350 pages, working through a raft of legal
arguments first and then painstakingly applying them to each of the
challenged readings. And for me, with a week’s vacation pending, I am
trying to make sense of this tome before I leave, which is why I am
writing this at four in the morning on a Saturday (please excuse
typos!).

Thus, the operational bottom line for universities is that it’s
likely to be fair use to assign less than 10% of a book, to assign
larger portions of a book that is not available for digital licensing,
or to assign larger portions of a book that is available for digital
licensing but doesn’t make significant revenues through licensing. This
third prong is almost never going to be something that professors or
librarians can evaluate, so in practice, I expect to see fair-use
e-reserves codes that treat under 10% as presumptively okay, and amounts
over 10% but less than some ill-defined maximum as presumptively okay
if it has been confirmed that a license to make digital copies of
excerpts from the book is not available.
The most interesting issue open in the case is the scope of any
possible injunction. Given that Georgia State won on sixty-nine out of
seventy-four litigated claims, while the publishers won on only five, I
expect that the any injunction will need to be rather narrow. But given
how amenable the court’s proposed limits are to bright-line treatment,
it is likely that the publishers will push to write them in to the
injunction.
My bottom line on the case is that it’s mostly a win for Georgia
State and mostly a loss for the publishers. The big winner is CCC. It
gains leverage against universities for coursepack and e-reserve copying
with a bright-line rule, and it gains leverage against publishers who
will be under much more pressure to participate in its full panoply of
licenses.

In addition to the statutory factors, courts are required to consider how a
proposed fair use serves or disserves the purpose of copyright, which is to
encourage the creation and dissemination of creative works. The judge’s
reasoning here is perhaps the most compelling and shows that she took into
account some key facts about the academic publishing market that are often
overlooked in these discussions. Based on testimony from GSU professors, the
judge finds that academic authors and editors are motivated by professional
reputation and achievement and the advancement of knowledge, not royalty
payments, and that any diminution in royalty payments due to unlicensed
course reserves would have no effect on their motivation to produce
scholarship.8 Indeed, because the authors of such works are also the primary
users of course reserve systems, they would experience a net benefit from fair
use in that context. The court emphasizes that publishers receive so little income
from licensing excerpts as a percentage of their overall business that the slight
diminution caused by allowing unlicensed posting to course reserves would
have no cognizable effect on their will or ability to publish new works.
Unfortunately, these additional considerations do not enter into the individual
determinations. Rather, the court finds that any uses that stay within her
framework will serve the purposes of copyright, and those that stray beyond it
will disserve them.

While the legal analysis may take time, both publishers and academic
librarians have reacted strongly throughout the case. Publishers argued
hat their system of promoting scholarship can't lose copyright benefits.
Judge Evans in her decision noted that most book (and permission) sales
for student use are by large for-profit companies, not by nonprofit
university presses. But the Association of American University Presses has backed the suit
by Cambridge and Oxford, saying that university presses "depend upon
the income due them to continue to publish the specialized scholarly
books required to educate students and to advance university research."
Many librarians, meanwhile, have expressed shock that university
presses would sue a university for using their works for teaching
purposes. Barbara Fister, a librarian at Gustavus Adolphus College and
an Inside Higher Ed blogger, tweeted Friday night: "It still
boggles my mind that scholarly presses are suing scholars teaching works
that were written to further knowledge."
The reserve readings at the crux of the dispute are chapters, essays
or portions of books that are assigned by Georgia State professors to
their undergraduate and graduate students. (While the readers are
frequently referred to as "supplemental," they are generally required;
"supplemental" refers to readings supplementing texts that the
professors tell students to buy.) E-reserves are similar to the way an
earlier generation of students might have gone to the library for print
materials on reserve. The decision in this case notes a number of steps
taken by Georgia State (such as password protection) to prevent students
from simply distributing the electronic passages to others.

"My initial reaction is, honestly, what a crushing defeat for the
publishers," said Brandon C. Butler, the director of public-policy
initiatives for the Association of Research Libraries. Given how few
claims the publishers won, "there's a 95 percent success rate for the
GSU fair-use policy." The ruling suggests that Georgia State is "getting
it almost entirely right" with its current copyright policy, he said.
The three publishers brought their suit in April 2008. The
Association of American Publishers and the Copyright Clearance Center,
which licenses content to universities on behalf of publishers, helped
foot the bill.
In their complaint, the plaintiffs alleged that Georgia State went
well beyond fair use in how much copyrighted material it allowed faculty
members to post online for students. The university denied the claim
and overhauled its e-reserves policy in late 2008, after the lawsuit was
brought. As a state institution, it also invoked sovereign immunity,
which meant that the publishers would have a harder time seeking
damages.

At the same time, we are disappointed with aspects of the Court's
decision. Most importantly, the court failed to examine the copying
activities at GSU in their full context. Many faculty members have
provided students with electronic anthologies of copyrighted course
materials which are not different in kind from copyrighted print
materials.

In addition, the court's analysis of fair use principles was
legally incorrect in some places and its application of those principles
mistaken. As a result, instances of infringing activity were
incorrectly held to constitute fair use. Publishers recognize that
certain academic uses of copyrighted materials are fair use that should
not require permission but we believe the court misapplied that doctrine
in certain situations.

The Court’s ruling has important implications for the ongoing
vitality of academic publishing as well as the educational mission of
colleges and universities. Contrary to the findings of the Court, if
institutions such as GSU are allowed to offer substantial amounts of
copyrighted content for free, publishers cannot sustain the creation of
works of scholarship. The resources available to educators will be
fundamentally impaired.

So—crushing victory for Georgia State, whose professors can now dance
gleefully through the ash of their foes in publishing? Not quite. After
years of litigation, the case came down to 75 particular items that the
publishers argued were infringing. Five unlicensed excerpts (from four
different books) did exceed the amount allowed under factor three above.
These books include The Sage Handbook of Qualitative Research in both its second and third editions, along with The Power Elite and the no-doubt-scintillating tome Utilization-Focused Evaluation (Third Edition).
While the university had issued a 2009 guide designed to help faculty
know when they needed a license for excerpts, the judge found that the
policy "did not limit copying in those instances to decidedly small
excerpts as required by this Order. Nor did it proscribe the use of
multiple chapters from the same book."
Still, copyright and fair use can be murky, and the judge found no
bad faith on the school's part, concluding: "The truth is that fair use
principles are notoriously difficult to apply."

Update, 5/15: In a conference call with reporters,
Rich, along with Tom Allen, the president of AAP, disputed the popular
notion that the publishers had "lost" the lawsuit. Before the publishers
brought the suit four years ago, Georgia State's standards for
e-reserve copying were far more permissive. Only afterward, in
anticipation of a court trial, did Georgia State tighten its e-reserves
policies, Rich said. During the trial, Judge Evans said she would only
consider the fair use merits of instances of alleged infringement that
occurred during a specific period after Georgia State had overhauled its
practices.
Therefore, the judge's ruling was based on legal parsing of examples
"that nobody thought would be the focal point of this lawsuit when it
was brought,” Rich said. “So for Georgia State to declare victory as to
those kinds of works is a false trail.”
While the scorecard might not have favored the publishers, the
lawsuit forced Georgia State to shore up its e-reserve practices and
confirmed that publishers' copyright protections do indeed apply to
e-reserves. And that, Rich said, is not small victory. The lawsuit "was
never about drawing the line at this point or that point, but to address
a system that basically snubbed its nose at copyright," he said. “At a
very fundamental level, that issue has been affirmatively addressed."

Judge Evans has plainly stated that if a publisher's chapter is readily
and easily available and the permission is set at a "reasonable price"
then the law comes down on the publisher's side. She notes
specifically, Copyright Clearance Center which can deliver a permissions
fee to the user (faculty, librarian, etc.) via Rightslink and, although
CCC does not hold the actual content, publishers will be motivated to
create digital repositories at a disaggregated level.

A closely watched trial in federal court in Atlanta, Cambridge University Press et al. v. Patton et al.,
is pitting faculty, libraries, and publishers against one another in a
case that could clarify the nature of copyright and define the meaning
of fair use in the digital age. Under copyright law, the doctrine of
fair use allows some reproduction of copyrighted material, with a
classroom exemption permitting an unspecified amount to be reproduced
for educational purposes.
At issue before the court is the practice of putting class readings
on electronic reserve (and, by extension, on faculty Web sites).
Cambridge, Oxford University Press, and SAGE Publications, with support
from the Association of American Publishers and the Copyright Clearance
Center, are suing four administrators at Georgia State University. But
the publishers more broadly allege that the university (which, under
"state sovereign immunity," cannot be prosecuted in federal court) has
enabled its staff and students to claim what amounts to a blanket
exemption to copyright law through an overly lenient definition of the
classroom exemption. The plaintiffs are asking for an injunction to stop
university personnel from making material available on e-reserve
without paying licensing fees. A decision is expected in several weeks. The Chronicle asked experts in scholarly communications what the case may mean for the future:

According to a ruling on October 1,
the closely watched Georgia State University (GSU) ereserves lawsuit
will come down to whether the named defendants participated in the
specific act of "contributory infringement," as two other original
accusations were removed from the case.

This narrows the scope
of the charges lodged by the publisher plaintiffs—Oxford University
Press, Cambridge University Press, and SAGE Publications—and has Fair
Use advocates cautiously optimistic as the case moves closer to trial.

In a blog post,
library copyright watchdog and Duke Scholarly Communications Officer
Kevin Smith wrote that he was "surprised at how favorable the ruling
issued yesterday is to Georgia State; even though the Judge clearly
expects to go to trial, there is a lot in her ruling to give hope and
comfort to the academic community."

Barring a narrow settlement,
the case could have a broad effect on academic library practice. If
GSU's current policies are affirmed, libraries nationwide with similar
digital reserves policies will be reassured if not emboldened. Should
the plaintiffs prevail, however, there is likely to be a considerable
chill on Fair Use deliberations as libraries reconsider the digital
access they grant to copyrighted materials.

Two levels of infringement tossed out
Judge
Orina Evans of Federal District Court in Atlanta ruled against all of
the plaintiffs' motions for summary judgment, and granted two of the
defendants' three counter-motions.

This ruling essentially
holds there to be insufficient evidence to show that the named
defendants (GSU's president Mark Becker, provost, associate provost for
technology, and dean of libraries, Charlene Hurt) committed any acts
of infringement, thus ruling out a charge of "direct infringement."

Likewise,
Judge Evans similarly determined that there was no evidence of any
profit directly from infringement committed by librarians under their
supervision, excluding "vicarious infringement."

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Michael Cairns

I enjoy discussing the publishing industry and in particular the changes that impact the business. On PND, I don't write about everything, just the things that interest me.

My career spans a wide range of publishing and information products, services and B2B categories and my operating and consulting experience has largely been with brand-name companies such as PriceWaterhouseCoopers, Macmillan, Inc., Berlitz International, AARP, R.R. Bowker and Wolters Kluwer.

I have served as a board member of the Association of American Publishers (AAP), the Book Industry Study Group (BISG) and in addition to my responsibilities at R.R. Bowker, l also served as Chairman of the International ISBN Executive Committee.